Lawyer Asking Me to Withdraw Maintenance and Residence Applications
2 Answers
Dear Client
You should not revoke your current maintenance and residence applications until you have found out the legal grounds for such revocation and seek another legal opinion. Since you are currently unemployed and since the proceedings have already been ongoing for about two years now, you should be very careful that you do not end up losing ground in terms of procedure and incur unnecessary costs in doing so.
The Protection of Women from Domestic Violence Act, 2005 allows different types of relief, which include the protection order, residence order, and monetary relief. Section 26 allows some reliefs, which can be sought under Sections 18-22 in other proceedings in civil court, Family Court or Criminal Court. But an application under Section 12 of the DV Act should normally be made before the competent magistrate under Section 27.
Request your advocate for an explanation as to why those applications are not possible to pursue anymore, which court will have the jurisdiction to hear the matter and what will be the impact on your existing affidavit/evidence if you withdraw the case. Withdrawal of your case without necessary permission/liberty can cause procedural issues.
Get a copy of the complete file of the case including all applications/orders and hearing details. You may also approach your District Legal Services Authority (DLSA) to enquire about free legal aid, as women are eligible to seek legal services under the applicable legal-aid framework.
You do not necessarily need to start multiple proceedings merely because one application has encountered delays. The correct course should be decided after reviewing the existing record.
I hope this answer helps. If you have any further query kindly do not hesitate to contact us. Thank you.
Dear Client,
Yes, you should withdraw, but only if the withdrawal application explicitly seeks leave to withdraw with liberty to file afresh, otherwise a technical bar could be raised later. Since no final order seems to have been passed in your favour in two years, you aren’t giving up any operative benefit by withdrawing.
A new DV case isn’t necessary by law, since Section 26, DV Act lets you pursue the same reliefs in your existing proceeding. However, before filing, ask your lawyer whether the delay is due to the court’s own backlog or how the applications were filed, since in some states family courts also exercise Magistrate powers under the DV Act, meaning a fresh filing could fall under the same delay. The Magistrate route under Section 12 carries a 60-day disposal target under Section 12(5).
Pursuing identical relief in two forums simultaneously is prohibited, so you’d need to withdraw from one if moving to the other. Lastly, given you’re unemployed, you likely qualify for free legal aid under Section 12(c), Legal Services Authorities Act, 1987, regardless of income, which can also fund a second opinion and you should get a second opinion before withdrawing as two years are already invested.